Code of Massachusetts Regulations
301 CMR - EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
Title 301 CMR 23.00 - Review and Approval of Municipal Harbor Plans
Section 23.05 - Standards for Municipal Harbor Plan Approval

Universal Citation: 301 MA Code of Regs 301.23

Current through Register 1531, September 27, 2024

An MHP or portion thereof shall be approved only upon a written determination by the Secretary that the following standards have been met.

(1) The MHP must be consistent with all CZM Policies, as applicable. In evaluating the MHP for such consistency, the Secretary shall take into account all relevant guidance as to the interpretation and application of such Policies as may be available in documents comprising the CZM Plan and other policy-related materials issued by CZM, such as federal consistency determinations.

(2) The MHP must be consistent with state tidelands policy objectives and associated regulatory principles, as set forth in 310 CMR 9.00: Waterways. In evaluating the MHP for such consistency, the Secretary shall take into account all relevant guidance as to the interpretation and application of such regulations as may be available in written determinations, licensing decisions, and other administrative documents issued pursuant to 310 CMR 9.00, or as may otherwise be provided by DEP in accordance with the consultation procedures of 301 CMR 23.08(2). In addition, the Secretary shall act in accordance with the following provisions.

(a) As articulated in 310 CMR 9.00: Waterways, the primary state tidelands policy objectives with which the MHP must be consistent are as follows:
1. to ensure that development of all tidelands complies with other applicable environmental regulatory programs of the Commonwealth as provided in 310 CMR 9.33: Environmental Protection Standards, and is especially protective of aquatic resources within coastal Areas of Critical Environmental Concern, as provided in 310 CMR 9.32(1)(e): Areas of Critical Environmental Concern (ACECs);

2. to preserve any rights held by the Commonwealth in trust for the public to use tidelands for lawful purposes, and to preserve any public rights of access that are associated with such use, as provided in 310 CMR 9.35: Standards to Preserve Water-related Public Rights;

3. to preserve the availability and suitability of tidelands that are in use for water-dependent purposes, or that are reserved primarily as locations for maritime industry or other specific types of water-dependant use, as provided in 310 CMR 9.32(1)(b): Tidelands Within Designated Port Areas (DPAs) and 9.36: Standards to Protect Water-dependent Uses;

4. to ensure that all licensed fill and structures are structurally sound and otherwise designed and built in a manner consistent with public health and safety and with responsible environmental engineering practice, especially in coastal high hazard zones and other areas subject to flooding or sea-level rise, as provided in 310 CMR 9.37: Engineering and Construction Standards;

5. to ensure patronage of public recreational boating facilities by the general public and to prevent undue privatization in the patronage of private recreational boating facilities, as provided in 310 CMR 9.38: Use Standards for Recreational Boating Facilities; and to ensure that fair and equitable methods are employed in the assignment of moorings to the general public by harbormasters, as provided in 310 CMR 9.07: Activities Subject to Annual Permit;

6. to ensure that marinas, boatyards, and boat-launching ramps are developed in a manner that is consistent with sound engineering and design principles, and include such pumpout facilities and other mitigation measures as are appropriate to avoid or minimize adverse impacts on water quality, physical processes, marine productivity, and public health, as provided in 310 CMR 9.39: Standards for Marinas/Boatyards/Boat Ramps;

7. to ensure that dredging and disposal of dredged material is conducted in a manner that avoids unnecessary disturbance of submerged lands and otherwise avoids or minimizes adverse effects on water quality, physical processes, marine productivity, and public health, as provided in 310 CMR 9.40: Standards for Dredging and Dredged Material Disposal;

8. to ensure that nonwater-dependent use projects do not unreasonably diminish the capacity of any tidelands to accommodate water-dependent use, as provided in 310 CMR 9.51: Conservation of Capacity for Water-dependent Use;

9. to ensure that nonwater-dependent use projects on any tidelands devote a reasonable portion of such lands to water-dependent use, including public access in the exercise of public rights in said lands, as provided in 310 CMR 9.52: Utilization of Shoreline for Water-dependent Purposes; and

10. to ensure that nonwater-dependent use projects on Commonwealth tidelands, except in DPAs, promote public use and enjoyment of such lands to a degree that is fully commensurate with the proprietary rights of the Commonwealth therein, and that ensures that private advantages of use are not primary but merely incidental to the achievement of public purposes, as provided in 310 CMR 9.53: Utilization of Shoreline for Water-dependent Purposes.

(b) If the MHP includes provisions that amplify upon any discretionary requirement of 310 CMR 9.00: Waterways, such provisions must be complementary in effect with the regulatory principle(s) underlying such discretionary requirement. At a minimum, this determination shall be based upon a demonstration by the municipality that:
1. the provisions in question do not contradict the corresponding provisions of 310 CMR 9.00: Waterways; for example, the MHP may not require that which is prohibited nor prohibit that which is required in 310 CMR 9.00: Waterways;

2. the provisions in question do not significantly alter the substantive nature of the requirement, narrow the range of factors that may be considered, or otherwise unreasonably affect the ability of DEP to exercise discretion in the interpretation and application of all relevant provisions of 310 CMR 9.00: Waterways; and

3. the provisions in question must be consistent with the provisions of any memoranda of understanding with other state agencies that, as provided in 310 CMR 9.00: Waterways, may govern the manner in which DEP licenses and permits will incorporate the requirements of other statues and regulations that preserve public rights in waterways and otherwise promote state tidelands policy objectives.

(c) If the MHP includes provisions that are intended to substitute for the minimum use limitations or numerical standards of 310 CMR 9.00: Waterways at 310 CMR 9.51(3)(a) through (e), 9.52(1)(b)1., or 9.53(2)(b) and (c), the Secretary must determine that the following conditions have been met, as applicable:
1. as provided in 310 CMR 9.51(3)(a), governing pile-supported structures that extend beyond the footprint of existing, previously authorized pile-supported structures, the MHP must specify alternative replacement requirements that ensure that no net loss of open water will occur for nonwater-dependent purposes, in order to maintain or improve the overall capacity of the state's waterways to accommodate public use in the exercise of water-related rights, as appropriate for the harbor in question;

2. as provided in 310 CMR 9.51(3)(b), governing the location of certain facilities of private tenancy, the MHP must specify alternative limitations and other requirements that ensure that no significant privatization of waterfront areas immediately adjacent to the water-dependent use zone will occur for nonwater-dependent purposes, in order that such areas will be generally free of uses that conflict with, preempt, or otherwise discourage water-dependent activity or public use and enjoyment of the water-dependent use zone, as appropriate for the harbor in question;

3. as provided in 310 CMR 9.51(3)(c), governing the establishment of a water-dependent use zone, the MHP must specify alternative setback distances and other requirements that ensure that new or expanded buildings for nonwater-dependent use are not constructed immediately adjacent to a project shoreline, in order that sufficient space along the water's edge will be devoted exclusively to water-dependent use and public access associated therewith, as appropriate for the harbor in question;

4. as provided in 310 CMR 9.51(3)(d), governing the combined footprint of certain buildings, the MHP must specify alternative site coverage ratios and other requirements that ensure that, in general, buildings for nonwater-dependent use will be relatively condensed in footprint, in order that an amount of open space commensurate with that occupied by such buildings will be available to accommodate water-dependent activity and public access associated therewith, as appropriate for the harbor in question;

5. as provided in 310 CMR 9.51(3)(e), governing the height of certain buildings, the MHP must specify alternative height limits and other requirements that ensure that, in general, new or expanded buildings for nonwater-dependent use will be relatively modest in size, in order that wind, shadow, and other conditions of the ground level environment will be conducive to water-dependent activity and public access associated therewith, as appropriate for the harbor in question;

6. as provided in 310 CMR 9.52(1)(b)1., governing the provision of a pedestrian access network, the MHP may specify a minimum walkway width other than ten feet, provided that the alternative width is appropriate given, among other things, the size and configuration of the water-dependent use zone and the nature and extent of water-dependent activity and public uses that may be accommodated therein;

7. as provided in 310 CMR 9.53(2)(b) and (c), governing provision of water-related public benefits by certain nonwater-dependent use projects, the MHP must specify alternative requirements for public outdoor recreation facilities and for interior facilities of public accommodation that will establish the project site as a year-round locus of public activity in a comparable and highly effective manner;

(d) In accordance with 310 CMR 9.51(3), any determination made pursuant to 301 CMR 23.05(2)(c), shall be based upon a demonstration by the municipality that the substitute provisions set forth in the MHP will promote, with comparable or greater effectiveness, the state tidelands policy objectives stated in the corresponding provisions of 310 CMR 9.00: Waterways. The substitute provisions may include alternative use limitations or numerical standards that are less restrictive than the Waterways requirements as applied in individual cases, provided that the MHP includes other requirements that, considering the balance of effects on an areawide basis, will mitigate, compensate, or otherwise offset adverse effects on water-related public interests. In determining whether comparable or greater effectiveness has been achieved, the Secretary shall also act in accordance with the following provisions:
1. the planning analysis and data presented therewith shall be organized in a manner that clearly identifies the substitute provisions proposed and establishes the nature and extent of differential effects that any less restrictive requirements will have with respect to the tidelands policy objectives in question; generally, the appropriate level of such analysis will depend on the degree to which the Waterways requirements are relaxed, the significance of benefits associated with proposed offsetting measures, and other relevant circumstances such as the characteristics of the built environment in the area in question;

2. generally, offsetting measures should be applied within reasonable proximity of the locus of adverse effects that need to be offset, in order to avoid or minimize inequity in the distribution of public benefits and detriments; and

3. a special permit, site plan review, or design review process may be acceptable as a means of establishing the particulars of mitigation on a case-by-case basis, provided that the MHP itself sufficiently defines the parameters within which such process will operate, so that a reasonable assessment of likely effects under varying circumstances can be made.

(e) If the MHP includes a DPA Master Plan, such Master Plan must preserve and enhance the capacity of the DPA to accommodate water-dependent industrial use, and must prevent substantial exclusion of such use by any other use eligible for licensing in a DPA pursuant to 310 CMR 9.32: Categorical Restrictions on Fill and Structures. At a minimum, this determination shall be based upon a demonstration by the municipality that the following criteria are met:
1. the Master Plan shall ensure that an extensive amount of the total DPA land area in close proximity to the water will be reserved for water-dependent industrial uses, provided that Temporary Use may also be allowed on such reserved lands if the Master Plan establishes guidelines for solicitation of a maritime industrial tenant as a pre-condition of the temporary occupancy; the Master Plan shall further ensure that commercial uses and any accessory uses thereto will not, as a general rule, occupy more than 25% of the total DPA land area covered by the Master Plan;

2. the Master Plan shall set forth reasonable arrangements, as required in 310 CMR 9.36: Standards to Protect Water-dependent Uses, to prevent commitments of any space or facilities that would significantly discourage present or future water-dependent industrial activity, especially on waterfront sites; the arrangements shall include, but are not limited to, appropriate limits on the type, location, density, scale, duration, operation, or other relevant aspects of commercial uses, in order to ensure that such uses will mix compatibly with and not significantly alter the predominantly maritime industrial character of the DPA; the Master Plan may also specify reasonable limitations on any uses in the DPA, if necessary to mitigate undue conflict with existing residential uses on properties abutting the DPA;

3. the Master Plan shall indentify any industrial or commercial uses allowable under the municipal zoning code that shall qualify as a Supporting DPA Use, provided such uses comply with the provisions of the definition set forth in 310 CMR 9.02: Definitions and any associated written guidelines of DEP; if the Master Plan includes provisions to allow for supporting uses on piers over flowed tidelands, the Master Plan shall specify limitations and other requirements that ensure that supporting uses do not decrease the functionality of the working waterfront;

4. the Master Plan shall set forth a strategy to guide the on-going promotion of water-dependent industrial use by appropriate municipalities, state agencies, and federal government; the strategy shall include, but is not limited to:
a. recommendations for capital improvements or other economic or operational benefits to be provided by projects involving Supporting DPA Uses, in accordance with municipal goals and priorities for development of water-dependent industrial uses on the project sites in question;

b. recommendations to preserve or enhance the infrastructure of navigation channels, truck routes and rail lines, and other transportation facilities providing user access to the working waterfront and its backlands from both the water and the land sides; and

c. commitments to maintain a surrounding land-development pattern that provides an appropriate buffer between industrial uses in the DPA and community uses that require separation therefrom in order to avoid significant operational conflict.

5. if the Master Plan identifies proposed new sites for recreational boating facilities of nine slips or less pursuant to 310 CMR 9.32(1)(b)7., the Secretary must determine that all of the following additional criteria are met:
a. The Master Plan must contain a detailed assessment of the physical characteristics of the DPA (i.e., configuration, size and location(s) of navigation channel(s); presence of existing docks, moorings, and developed shoreline features; etc.) as well as the functional characteristics of the DPA (i.e., scale and type of water-dependent uses, volume and type of vessels transiting the waterway, general composition and character of land uses in the DPA, etc.).

b. The Master Plan must contain an analysis of the potential effects of new recreational boating facilities on existing or prospective water-dependent industrial activity or watersheet operations within the DPA. This analysis shall include consultation and coordination with the U.S. Coast Guard and local harbormaster, as well as other affected port/harbor users, including the local waterways board, Massport or other port authority, port pilot association, and other users as applicable.

c. The Master Plan must demonstrate that the proposed recreational boating facilities will not create navigational conflicts or safety risks with existing or prospective water-dependent industrial activity or watersheet operations in the DPA; such demonstration shall include confirmation from the parties listed in 301 CMR 23.05(2)(e)5.b.

d. the Master Plan must demonstrate that such facilities cannot be reasonably located outside of the DPA and, in the case of proposed wet slips, must demonstrate that the proposed recreational berthing capacity cannot reasonably be provided in the form of moorings (permitted annually in accordance with 310 CMR 9.07: Activities Subject to Annual Permit) or dry rack storage; and

e. the Master Plan must demonstrate that the proposed facilities will provide direct economic or operational support to water-dependent industrial use in the DPA, such support may include, but is not limited to, the provision of additional berths for commercial vessels (i.e. beyond that already existing on the project site).

(3) The MHP must include all feasible measures to achieve compatibility with the plans or planned activities of all state agencies owning real property or otherwise responsible for the implementation or development of plans or projects within the Harbor Planning Area. This determination shall be made only if full consultation has occurred between the municipality and the relevant state agencies, wherein both parties have made every reasonable effort to maximize the compatibility of their respective plans.

(4) The MHP must include enforceable implementation commitments to ensure that, among other things, all measures will be taken in a timely and coordinated manner to offset the effect of any MHP requirement less restrictive than that contained in 310 CMR 9.00: Waterways.

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